For many years, plaintiffs in United States courts have sought to avoid established limits on tort claims, and to recover compensation even when traditional elements of a claim are absent. One variant of this effort has been the assertion of claims for medical monitoring, in which plaintiffs seek to recover medical expenses incurred in tracking health, despite the absence of a present injury. This theory is typically used to seek recovery of the future costs of medical testing needed to diagnose latent diseases that may be caused by exposure to a harmful substance, rather than compensation for an existing condition. Some US courts have allowed these claims to proceed, reasoning that the claim enables tort victims to detect and obtain treatment for latent disease at the earliest possible time. Other courts have refused to recognise the theory, adhering to the traditional principle that the lack of a current injury bars the claim.
In a significant ruling, New York’s highest court, the Court of Appeals, recently held that cigarette smokers who claimed no current illness could not evade the requirement of an actual injury as an element of a claim, and rejected the plaintiffs’ contention that the benefits provided by medical monitoring would justify elimination of the physical injury requirement. See Caronia v. Philip Morris USA Inc., 2013 N.Y. Slip Op. 08372, 2013 WL 6589454 (N.Y. December 17, 2013).
In Caronia, three smokers brought a putative class action against a cigarette manufacturer seeking the creation of a court-supervised program to fund low dose CT scanning to aid in the early detection of lung cancer. Plaintiffs claimed to represent a class of long-time cigarette smokers despite their lack of a current injury. They alleged that an equitable claim for medical monitoring should be recognised under New York law, even where no personal injury exists. This nascent theory of liability, plaintiffs claimed, allowed them to recover the costs of the long-term diagnostic testing needed to detect latent disease, such as cancer, that could develop as a result of smoking. In a 4-2 decision, the Court of Appeals ruled that without a physical injury, an increased risk of future harm does not suffice to support an independent cause of action for medical monitoring. Allowing such a claim without a physical injury, it explained, “would constitute a significant deviation from our tort jurisprudence.”
In explaining its refusal to do away with the physical harm requirement, the Court said that the requirement served a number of important purposes: the requirement “defines the class of persons who actually possess a cause of action, provides a basis for the fact-finder to determine whether a litigant actually possesses a claim, and protects court dockets from being clogged with frivolous and unfounded claims.” Expanding on this rationale, the Court added that it is “speculative, at best, whether asymptomatic plaintiffs will ever contract a disease” which would lead to the “inequitable diversion of money away from those who have actually sustained an injury as a result of the exposure.” Thus, the Court concluded that the “potential systemic effects of creating a new, full-blown tort law cause of action” outweighed the “important health interest in fostering access to medical testing for those whose exposure has resulted in an increased risk of disease.” Finally, the Court reasoned that legislatures (not courts) should resolve the type of far-reaching and complex public policy issues raised by the plaintiffs’ request for medical monitoring. It explained that the “impact and consequences of creating” a medical monitoring cause of action should be studied by the state since it involves a drawing of lines reflecting considerations of public policy.
In an ardent dissent, the Court’s Chief Judge asserted that the Court’s reluctance to recognise a new cause of action would “only serve to thwart the ends of justice” because the relief sought by the plaintiffs was “capable of forestalling profound suffering and death.” “Overall fairness” the dissent contended, “demands” that New York recognise a cause of action for medical monitoring. In support of this conclusion, the dissent cited medical advances that allowed the detection of lung cancer at a “much earlier stage than previously possible.”
Thomas Riley, a partner at Herbert Smith Freehills’ New York office, explained the decision: “The ruling represents a rejection of plaintiffs’ efforts to eliminate long-standing limits on tort claims. Instead, New York’s High Court has re-affirmed traditional principles of tort law by requiring plaintiffs to prove the existence of an actual physical injury in order to maintain their claims.”
For more information, please contact Thomas Riley, Partner, Garrett Kamen, Associate, or your usual Herbert Smith Freehills contact.
Garrett KamenAssociate, dispute resolution
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